MATHONSI J: The late Lucas Tangani Moyo was a polygamist
with at least 3 wives, one of whom is the Applicant in this matter. He died on the 11th December
2005. At the time of his death, the late
Lucas Tangani Moyo and the Applicant had been separated for 6 years although no
divorce proceedings had been set in motion.
Prior to his death, the deceased
had, on the 25th January 2002 executed a handwritten Will in terms
of which he made certain bequests to the exclusion of the Applicant. That Will was lodged with the second
Respondent on the 8th March 2006.
It was accepted. The offices of
the Master and that of the Assistant Master are public offices in terms of
section 3 of the Administration of Estates Act, [Chapter 6:01] and in terms of
section 4 they are offices of record.
The second Respondent is charged with the administration of estates and
in doing so he/she make binding decisions as a quasi judicial body.
Although
the Will of the deceased was accepted by the second Respondent on the 8th
March 2006, it was not until the 26th February 2007, almost a year
later, that the Applicant in this matter instituted proceedings in this Court
by summons action under case No. HC 394/07 seeking an order inter alia
nullifying the Will in question and removing the first Respondent from the
position of Executrix which she held.
Applicant sought an order in the alternative declaring that a
partnership existed between her and the deceased and therefore that she be
awarded certain items of property belonging to the estate.
It is not clear on what basis the
Applicant imputed the existence of a partnership when she and the deceased were
married in accordance with the Customary Marriages Act, [Chapter 5:07]. Regarding her challenge on the validity of
the Will, Applicant alleged that it did not comply with the provisions of the
Wills Act, [Chapter 6:06] dealing with the drafting and signing of Wills.
That action was opposed by the first Respondent and the pleadings were
pursued until Discovery Affidavits were filed.
In fact the last document filed in that matter is the Plaintiff's
Discovery Affidavit filed on the 17th September 2009. Since then nothing has been done to prosecute
the case.
Be that as it may, the Applicant
launched the present application on the 31st August 2009 in which he
seeks an order nullifying the winding up of the estate of the late Lucas
Tangani Moyo under DRB No. 99/06 and costs of suit on an attorney and client
scale. The Applicant alleges that the
moment both Respondents were served with his summons in Case No. HC 394/07,
they were supposed to immediately halt further action on the estate and the
second Respondent should not have allowed the first Respondent to frame and
lodge a distribution account of the estate but instead await the outcome of his
claim under Case No. HC 394/07.
It is common cause that the
Applicant did not seek to stay the winding up of the estate, neither did he
appeal the decision of the second Respondent to accept the Will. It is also common cause that when the First
and Final Distribution Account in respect of the estate was produced and lay at
second Respondent's office for inspection, the Applicant did not object to it,
neither did she submit a claim to the Respondents. According to the second Respondent's report
dated 12th July 2010, “the Deputy Master's office only proceeded to
confirm the estate account well over four months after the estate account had
been advertised to lie for inspection and no objection had been received.”
After the confirmation of the estate
account, the first Respondent proceeded to distribute the estate to the
beneficiaries in terms of the Will. As
it is now, there is nothing left of the estate and the first Respondent has
been retired.
The
Wills Act, [Chapter 6:06] empowers the second Respondent to accept a Will which
does not comply with the provisions of the Act relating to the drafting and
signing of a Will. Section 8(5)
provides:
“Where
the Master is satisfied that a document or an amendment of a document which was
drafted or executed by a person who has since died was intended to be his will
or an amendment of his Will, the Master may accept the document, or that
document as amended as a Will for the purposes of the Administration of Estates
Act [Chapter 6:01] even though it does not comply with all the formalities for-
(a)
the execution of Wills referred to in subsection (1)or
(2); or
(b)
the amendment of Wills referred to in subsection (2),
(3) or (4) of section nine.”
Clearly therefore when second Respondent accepted the document submitted
as the deceased's Will, he was standing on firm ground. Subsection (6) provides a remedy for those
aggrieved by the decision to accept a document as a Will. It reads:-
“Any person who is
aggrieved by a decision of the Master may appeal to an appropriate Court within
30 days of being notified of the decision of the Master.”
The Applicant, as already
pointed out, did not appeal the second Respondent's decision within 30 days or
at all. I have already stated that the Assistant
Master is the authority charged with the Administration of Estates Act and
makes binding decisions in that regard.
In this case he made the decision to accept the document and that
decision still stands. It has not been
appealed against as provided for in the Wills Act and this Court cannot
substitute its own decision when one of a quasi judicial body already
exists. It cannot be said that the
Applicant's summons action filed under Case No. HC 394/07 was an appeal within
the meaning of section 8(6) of the Wills Act.
Even if one were to be charitable and accept it as such, it would still
be hopelessly out of time as to do violence to the Act. This is particularly so in light of the fact
that the Court has not been asked to condone the delay.
Mr. Ndlovu,
appearing for the Applicant argued that the winding up process should be
nullified because Respondents ignored Applicant's claim to the estate made
under Case No. HC 394/07. There is a
procedure to be followed when making a claim against an estate and it is
provided for in Part III of the Administration of Estates Act. It was not followed. I agree with Mr Moyo for the first Respondent that the first Respondent was then
entitled to proceed with the winding up in accordance with the law and it was
naive to expect her to stay the process which was obligatory according to the
governing statute when there was no Court order to that effect Mujuru N.O and Others v Tungamirai and
Another HH22/06.
I am mindful, of the fact
that Applicant's customary marriage to the deceased was all but an empty shell
at the time of the deceased's death, they having gone their separate ways some
6 years earlier. She therefore does not
even have the protection of section 5(3) if the Wills Act and without
prejudging the claim under Case No. HC 394/07, to base a claim on allegations
of a partnership in the circumstances of this matter is simply to stretch the
imagination to elasticity limits. In any
event there must be finality to litigation.
See Ndebele v Ncube 1992(1)
ZLR 288(S) 290 C-D. The estate has long
been put to bed.
Accordingly I conclude that
there is no merit in the application. It
is therefore dismissed with costs.
Messrs
R. Ndlovu and Company, applicant's legal practitioners
Messrs Moyo and Nyoni, 1st
respondent's legal practitioners
